United States v. Davis

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-31303 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT DAVIS,

Defendant-Appellant. ____________________________________________________________

Appeal from the United States District Court for the Middle District of Louisiana (00-CR-41-ALL) ____________________________________________________________ August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Having pleaded guilty to being a felon in possession of a

firearm, Robert Davis appeals his sentence. He contends the

district court erred by increasing his offense level by four

levels, pursuant to U.S.S.G. § 2K2.1(b)(5) (use or possession of

firearm in connection with another felony offense), because he had

distributed a falsely represented controlled substance while

possessing a firearm, a felony offense under Louisiana law. See

LA. REV. STAT. ANN. 40:971.1. Davis maintains his conduct did not

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. constitute a violation of that statute. We do not decide this

issue because the district court's error, if any, was harmless.

A sentence will be vacated only if it was imposed in violation

of law, if the guidelines were incorrectly applied, or if the

sentence is outside the guideline range and is unreasonable. E.g.,

United States v. Cabral-Castillo, 35 F.3d 182, 186 (5th Cir. 1994),

cert. denied, 513 U.S. 1175 (1995). When a district court has

misapplied the guidelines, remand is appropriate unless we

conclude, based upon “the record as a whole, that the error was

harmless, i.e., that the error did not affect the district court's

selection of the sentence imposed”. Williams v. United States, 503

U.S. 193, 203 (1992).

Davis admitted taking a pistol from the lap of one of the

victims, pointing it at the victim, and attempting to pull the

trigger. This conduct constituted attempted second-degree murder

under Louisiana law and would be punished as a felony. See LA. REV.

STAT. ANN. 14:27D(1), 14:30.1B; see also State v. Musgrove, 774 So.

2d 1155, 1159 (La. App. 2d Cir. 2000). We agree with the

Government that the district court could have imposed the §

2K2.1(b)(5) four-level increase on the alternative basis that Davis

used or possessed the firearm in connection with an attempted

second-degree murder. See U.S.S.G. § 2K2.1 comment. (n.7)

(defining “felony offense” as “any offense (federal, state, or

local) punishable by imprisonment for a term exceeding one year,

2 whether or not a criminal charge was brought, or conviction

obtained”). Therefore, any error in imposing the increase on the

basis of a violation of the Louisiana statute prohibiting false

representation of a controlled substance was harmless.

AFFIRMED